Monday, February 16, 2009

OPR To Release Report On Torture Advocacy Soon

The Department of Justice's Office of Professional Responsibility (OPR) has been reviewing the conduct of attorneys involved in the decision to sanction torture during the Bush Administration, according to a report by Newsweek's Michael Isikoff:

An internal Justice Department report on the conduct of senior lawyers who approved waterboarding and other harsh interrogation tactics is causing anxiety among former Bush administration officials. H. Marshall Jarrett, chief of the department's ethics watchdog unit, the Office of Professional Responsibility (OPR), confirmed last year he was investigating whether the legal advice in crucial interrogation memos "was consistent with the professional standards that apply to Department of Justice attorneys." According to two knowledgeable sources who asked not to be identified discussing sensitive matters, a draft of the report was submitted in the final weeks of the Bush administration. It sharply criticized the legal work of two former top officials—Jay Bybee and John Yoo—as well as that of Steven Bradbury, who was chief of the Office of Legal Counsel (OLC) at the time the report was submitted, the sources said. (Bybee, Yoo and Bradbury did not respond to multiple requests for comment.)

As befits their name, the OPR is investigating whether the DoJ opinion was, shall we say, fixed:

OPR investigators focused on whether the memo's authors deliberately slanted their legal advice to provide the White House with the conclusions it wanted, according to three former Bush lawyers who asked not to be identified discussing an ongoing probe. One of the lawyers said he was stunned to discover how much material the investigators had gathered, including internal e-mails and multiple drafts that allowed OPR to reconstruct how the memos were crafted. In a departure from the norm, Jarrett also told members of the Senate Judiciary Committee last year he would inform them of his findings and would "consider" releasing a public version. If he does, it could be the most revealing public glimpse yet at how some of the major decisions of Bush-era counterterrorism policy were made.

I and most folks who became cynical about the Bush Administration suspect this to be true already. What I expect will come out of this is proof. That reference to e-mails is crucial. One thing that became clear during the U.S. Attorneys scandal is that even though the principles found ways to eliminate their e-mails, the subordinates implementing policy did not. Their e-mails often told interesting tales.

What I'm less sure of is what will become of all this. Despite Attorney General Eric Holder's declaration that waterboarding is torture, and that the President has no right to authorize it, it's pretty clear to me that President Obama and Holder would just as soon wash their hands of the issue of torture during the Bush Administration. If this reports is damning enough they might not be able to, but I'm not holding my breath. Sad to say, the spirit of justice is a very weak one in DC.

UPDATE: Over at FireDogLake, Selise provides another possible explanation for why the urge to make all this torture and rendition stuff go away is so bipartisan:

Did the USA engage in torture by proxy during the Clinton years? A criminal investigation into published reports could answer that question. And if such an investigation were to show that torture was used, then we ought to hold Democrats as well as Republicans accountable for their crimes. Only if we, the citizens who have donated, volunteered and voted for Democrats, refuse to apply the same standards of accountability to both the Clinton and Bush administrations can [Salon columnist Joe] Conason fairly make the claim that it's about partisanship and not accountability.

Personally, I see no difference practical difference between some of the alleged abuses Selise cites and the ones perpetrated by the Bush Administration. Both should be prosecuted, if it's possible. These abuses are a stain we'll wear as a country for a long time, and they seem to have netted us absolutely nothing. The more likely people underneath a President fear they may be prosecuted for doing something illegal on his behalf, the less willing they'll be to do it.

Alas, it seems the only way we'll see prosecutions is if Europe decides to get crack-a-lackin. And with the way the world ends up kowtowing to America, my dreams of seeing Bush and his enablers dragged into the Hague shall probably never come true.

What really gets up my nose is this talk of investigating (without prosecutions, of course) so that this "never happens again." If you don't enforce the law, the law will continue to get broken.

At this point, I'll be amazed if we end up even with a watered-down report...

There's been so much written about the absurdity of such a commission that I scarcely see the reason to bother at this point. The Warren Commission and the Challenger Commission are examples of why such things never work out. They are inquiries that lack the intellectual rigor of either a court proceeding or a scientific investigation. Either would be preferable to a bunch of politicians (or ex-politicians) and their politically-aware "experts" harumphing through a couple of months of testimony.